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May 9, 2009

"A new Texas? Ohio's death penalty examined"

The title of this post is the title of this article in The Ohio State University's campus newspaper, The Lantern. The article interviews the author of a new book on Ohio's death penalty, Andrew Welsh-Huggins, who will be the featured speaker at an even in which I will be participating later today. Here are the basics and one of the Q&A passages:

The Kirwan Institute for the Study of Race and Ethnicity will be hosting a panel discussion titled "Perspectives on Ohio's Death Penalty," Saturday. The event will be in Saxbe Auditorium in Drinko Hall from 2 to 4 p.m. One of the panelists, Andrew Welsh-Huggins, recently published a book on the death penalty in Ohio, called "No Winners Here Tonight: Race, Politics, and Geography in One of the Country's Busiest Death Penalty States." He took some time to be interviewed by The Lantern....

TL: The subtitle of your book, "Race, Politics, and Geography in One of the Country's Busiest Death Penalty States," may be a surprising title for many readers, as it is not widely realized that Ohio has one of the most active death chambers in the U.S. Can you tell us how Ohio's use of the death penalty compares with other states?

AWH: What took people by surprise was that Ohio executed seven people in 2004, making us the second-highest executor that year, only after Texas, the perennial leader. In the next few years, Ohio often had the second or third busiest death chambers and seems to always be in the top five. Right now there are already four people scheduled to die.

Long prison term in Peoria for child porn "librarian"

This local story, headlined "Peoria man gets 19 years for child pornography library," provides an effective account of another notable federal sentencing for a child porn downloader. Here are some details:

Michael D. Dupoy ... was sentenced to 220 months in federal prison Friday. U.S. District Judge Michael Mihm said the term was necessary because of Dupoy's extensive criminal record and remarks Dupoy posted online urging others with whom he traded illicit images to think of ways to avoid being caught.

Assistant U.S. Attorney Kirk Schoenbein cited the library of 26,000 child pornography images and hundreds of videos Dupoy had amassed on his computer. Saying Dupoy had "sold his soul," Schoenbein asked Mihm for the maximum 20-year sentence. "He didn't dabble in this, he immersed himself in it," Schoenbein said. "He's not going to change."

Attorney Robert Alvarado of the federal defender's office argued for a 10-year sentence, attacking the federal sentencing guidelines that would put his client behind bars for longer than if he had actually molested a child.

Mihm said he would have considered that argument had it been made for a different defendant, one with a lesser criminal history. But Dupoy, who has been convicted of a litany of property crimes and spent most of his life since the age of 13 in correctional centers, was not the right defendant. Mihm also scuttled the idea that Dupoy's crime was less hurtful than if he had physically touched children: "The fact that these things are shared encourages people to do this."

Dupoy expressed remorse to the court during a brief statement in which he revealed had been physically and sexually abused by his father and asked for leniency. "I have lived with what my dad did to me all my life, and I prayed to God to help me stop looking at children," he said. "I know I have done wrong and I am deeply sorry for what I have done."

A closer look at the pros and cons of GPS tracking for abusers

As regular readers know, I believe GPS tracking and other forms of technocorrections are certain to be a larger and larger component of the criminal justice future. I was thus pleased and intrigued to see this new piece in the New York Times, headlined "More States Using GPS to Track Abusers and Stalkers." Here are a few excerpts:

In Massachusetts, where about one-quarter of restraining orders are violated each year, according to the state’s probation office, a recent law has expanded the use of global positioning devices to include domestic abusers and stalkers who have violated orders of protection....

Twelve other states have passed similar legislation — most recently, Indiana this week — and about 5,000 domestic abusers are being tracked nationwide, said George Drake, who oversees Colorado’s Electronic Monitoring Resource Center, which gathers data from equipment vendors.

But the path to the system’s widespread use has been bumpy. It is still hard to protect families who live in rural areas or where there are not enough police officers to respond quickly. With the economic downturn, states have cut money for training the police and judges in GPS use, and some places with legislation in place say they cannot afford it.

It is up to a judge, in cases of extreme violence, to decide whether to order its use before trial, as a condition of bail or as a sentence. That has led to complaints by the American Civil Liberties Union and others of too much leeway for judges. “Until they know how GPS can be used and how successful it can be, judges are reluctant to order it because it’s unfamiliar,” said Judge Peter Doyle of Newburyport District Court. “Without seminars and convincing presentations, I wouldn’t have been comfortable ordering it.”...

Often the only way victims can prove that they are being stalked, experts say, is through new technologies like GPS.... Experts say the program can help save lives. Domestic-violence-related homicides increased 300 percent in Massachusetts from 2005 to 2007, according to Jane Doe Inc., the Massachusetts Coalition Against Sexual Assault and Domestic Violence, while in Newburyport, where a High Risk Team was in place, there were no such homicides in that period.

“Using GPS monitoring to enforce an order of protection makes the order more than just a piece of paper,” said Diane Rosenfeld, a lecturer at Harvard Law School and a longtime advocate of using GPS in domestic abuse cases. “It’s a way of making the criminal justice system treat domestic violence as potentially serious. By detecting any escalation in the behavior of a batterer, GPS can prevent these unnecessary tragedies.” Ms. Rosenfeld’s research found that about one quarter of women who were killed by their domestic abusers already had restraining orders.

May 8, 2009

"Marvin Frankel’s Mistakes and the Need to Rethink Federal Sentencing"

The title of this post is the title of a new article by Judge Lynn Adelman and Jon Deitrich, which will soon appear in the Berkeley Journal of Criminal Law. I am pleased and hornor to have permission to post the piece on the blog, and here is a paragraph from the introduction to further whet a sentencing guru's appetite for great weekend reading:

We agree that Frankel was a brilliant professor and a distinguished judge and that Congress and the Commission implemented his ideas poorly. We also agree that he wanted sentencing to be more humane. However, we believe that Frankel’s analysis of sentencing was deeply flawed, and that the guidelines failed in substantial part because of the flaws in his approach. We also believe that discussing Frankel’s ideas is timely, both because of the recent Supreme Court decisions returning sentencing discretion to district judges and because of the recent interest in the problem of mass incarceration to which the guidelines have contributed. In this article, we discuss Frankel’s ideas, the problems with them, and their effects. We conclude with several recommendations as to how to improve federal sentencing.

I was intrigued and pleased to see this press release from Human Rights Watch discussing its efforts to convince Congress (rather than just the Supreme Court) to eliminate LWOP sentences for juveniles in the United States. Here are some of the interesting details:

The US Congress should pass a proposed law to end the sentencing of youth offenders to life in prison without the possibility of parole, Human Rights Watch said today in a letter to members of the House Judiciary Committee. At least 2,574 individuals in the United States are serving these sentences for crimes they committed before they were 18 years old. The United States is the only country that uses such sentences for crimes committed by juveniles.

On May 6, 2009, Representatives Robert "Bobby" Scott and John Conyers introduced H.R. 2289, the Juvenile Justice Accountability and Improvement Act of 2009, in the US House of Representatives. The bill would require states and the federal government to offer youth offenders meaningful opportunities for parole after serving 15 years of a life sentence....

The introduction of the bill coincided with Human Rights Watch's release of new figures showing that there are currently at least 2,574 persons in US prisons who were sentenced to life without parole for crimes committed before the age of 18, an increase of 90 from May 2008.

The higher number is due primarily to improvements in data reporting rather than significant increases in the number of youth sentenced to life without parole. Increases were most dramatic in California (250 total, an increase of 23), Michigan (346 total, an increase of 30), and the federal Bureau of Prisons (37 total, an increase of 35). Iowa, Louisiana, Massachusetts, Ohio, and Texas also saw increases in juvenile life without parole. The states with the largest numbers of prisoners serving this sentence are Pennsylvania (444), Michigan (346), Louisiana (335), Florida (266), and California (250).

Researchby Human Rights Watch found that nationwide, 59 percent of youth serving life without parole sentences received the sentence for their first criminal conviction, and 16 percent were 15 or younger at the time of their offense. An estimated 26 percent were convicted on the basis of accomplice liability or felony murder. These are crimes in which a teenager who commits a non-homicide felony such as a robbery is held responsible for a codefendant's act of murder during the course of the crime. State laws often do not require the person convicted on this charge to know that a murder was planned or even that the codefendant was armed....

Human Rights Watch has also found substantial racial disparities in life without parole sentences given to juveniles. On average across the country, black youth are serving life without parole at a per capita rate that is 10 times that of white youth. In Pennsylvania, which has the largest number of juvenile offenders serving life without parole, black youth are 21 times as likely to be serving the sentence as white youth....

On May 4, the US Supreme Court agreed to decide whether life without parole for juveniles who have committed only non-homicide crimes violates the US Constitution's prohibition on cruel and unusual punishments. The case will be heard in the court's next term, which begins in October.

"Ice cream man awaits sentencing"

The title of this post is the headline of this local articlethat I thought might provide the basis for a little friday tomfoolery. Here are the basics:

An ice cream truck driver that admitted to exposing himself in front of a toddler in Sugar Grove is expected to be sentenced later this month. Douglas R. Jones, 48, of Aurora, has pleaded guilty to sexual exploitation of a child, a class four felony.

He faces between one and three years in prison, or could receive probation. He is expected to be sentenced May 21 by Circuit Judge Robert Spence, according to prosecutors.

Jones was arrested in June 2007 after police say a 3-year-old saw Jones exposing himself inside his ice cream truck.

At the time, Jones also was a substitute teacher in the Aurora East school district but was not allowed to continue his role following the arrest, according to district officials. Jones also had been elected to the Kane County Regional School Board.

I will get the silliness started by wondering if the new neighborhood chant is "You scream, I scream, we all scream, for the ice cream man to be lock up." Or, maybe we should talk about possible alternative sentences: e.g., perhaps the defendant here should be ordered to keep a popsicle in his shorts for the duration of his sentencing term.

May 7, 2009

A (third-hand hearsay) report on how DOJ is now dealing with crack sentencings

In prior posts, I have been wondering how local federal prosecutors would approach crack sentencings in the wake of advocacy from the new Justice Department last week in Congress urging the complete elimination of any crack/powder disparity. This afternoon, I got a partial (third-hand hearsay) answer when I received from a friend of the blog via e-mail what purports to be part of a letter from a federal prosecutor to defense counsel in one federal district. Here is the key section of that letter:

United States Attorney’s Offices were provided with new guidance concerning sentencing for crack cocaine offenses. This guidance provides that United States Attorney’s Offices should inform courts that the Department of Justice believes Congress and the United States Sentencing Commission should eliminate the crack/powder cocaine disparity. Congress has not yet determined whether or how to achieve a more appropriate sentencing scheme for crack and powder offenses. Until Congress acts, the Department of Justice recognizes courts must exercise their discretion under existing case law to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a).

The Department of Justice’s position with respect to variance motions in crack cocaine cases is to be determined on a case-by-case basis. The Department of Justice will continue to charge provable threshold quantities of crack cocaine triggering mandatory minimums.

Stanford Law Review issue on "Media, Justice, and the Law"

This past January I had the pleasure of participating as a panelist at the Stanford Law Review's symposium titled "Media, Justice, and the Law." The major papers presented at the live event were all distinctive and fascinating, and they are now available on-line at this link as published in SLR's April 2009 issue. Here are the specifics with links to individual pieces:

As detailed in this press coverage, "The New Jersey Supreme Court today upheld a lower court ruling invalidating ordinances in Cherry Hill and Galloway Township that severely restricted where registered sex offenders could live." Here is how the brief ruling in G.H. v. Township of Galloway, No. A-64/65 (NJ May 7, 2009) (available here), gets started:

We granted certification in this consolidated appeal to review an Appellate Division determination that Megan’s Law, see N.J.S.A. 2C:7-1 to -19, preempted and required the invalidation of municipal ordinances enacted by Cherry Hill Township and Galloway Township. The challenged ordinances each operated to prohibit convicted sex offenders from living within a designated distance of any school, park, playground, public library, or daycare center in its respective municipal jurisdiction. We now affirm the judgment of the Appellate Division substantially for the reasons expressed in Judge Lisa’s comprehensive opinion. G.H. v. Twp. of Galloway, 401 N.J. Super. 392 (2008). Accordingly, we hold that Cherry Hill Township’s and Galloway Township’s ordinances, establishing residency restrictions that formed buffer zones for convicted sex offenders living within their communities, are precluded by the present, stark language of Megan’s Law. It is that language which controls.

An op-ed call for a district judge to become a Justice

Echoing a point I made in this 2005 post and this 2008 post, US District Judge Ann Aldrich and her law clerks call for President Obama to nominate a trial judge for SCOTUS in this New York Times op-ed, headlined "A Deep Bench." Here are snippets, which not surprisingly make reference to sentencing jurisprudence:

To succeed Justice David Souter on the Supreme Court, President Obama should select a nominee with experience that no other sitting justice has — service as a trial judge on a federal district court.

Only 11 of the 110 justices in our history have been federal trial court judges. Since the creation of the modern federal courts of appeals in 1891, only four federal trial court judges have been elevated to the high court....

Why is this an issue? Most Supreme Court cases are initiated in district courts, and many end up back there when they are remanded for proceedings that are consistent with the high court’s ruling.

While the court’s opinions affect the day-to-day operations and decisions of the district courts, many of the justices lack the practical experience that is necessary for providing district courts with clear and workable directives.

For example, in 2005, the court declared in United States v. Booker that the mandatory federal sentencing guidelines followed by district judges in criminal cases were no longer mandatory, but advisory. “Advisory” means that the guidelines must still be considered, yet the court did not say how much weight district court judges must give to them. Since Booker, therefore, district court judges have struggled to impose sentences consistent with that vague decision and the piecemeal clarifications that followed from the courts of appeals and the Supreme Court.

It is hard to imagine that this lack of clarity would have occurred had there been a former federal district court judge on the bench — someone who had practical experience with handing down a sentence in federal court....

The nomination of a district court judge would bring much practical knowledge and understanding to the Supreme Court when providing answers and instructions to the lower courts. After a 50-year absence of district court judges on the high court, the president would do well to replace Justice Souter with a young and promising nominee with experience on the federal district court bench — this judge excluded.

UPDATE: In this post at Volokh, Jonathan Adler concurs with the sentiments expressed in this op-ed and goes on to add these further thoughts with which I heartily concur:

I also think it would be valuable if someone on the court had been a criminal defense attorney and litigator (as opposed to an appellate advocate). Appellate experience is important -- it's good seasoning for a potential Supreme Court justice -- but so is experiences with how the legal system operates at the ground level.

As the Wired posts note, there is still a pending motion to dismiss that needs to be resolved before the scheduled May 18 sentencing. In light of all these developments, I would guess that the district judge will deny the motion to dismiss, but then impose a sentence of probation. But this is just a guess (and done before reading the parties' papers linked above) based on my instinct that the district judge will want to find a viable way to "split the baby" in this high-profile case.

Thanks to a reader, I noticed a local article updating the interesting sentencing story of US v. Maynor. As detailed in this February post, the Fourth Circuit (in an unpublished opinion!) found an above-guideline sentence given to a former local sheriff to be procedurally unreasonable. This local article now provides, in the words of Paul Harvey, the rest of the story:

Former Robeson County Sheriff Glenn Maynor’s federal prison sentence was cut to two years on Tuesday, according a newspaper report. The Robesonianreported Tuesday evening that Maynor’s six-year sentence was dropped to 24 months....

In February, the U.S. Court of Appeals ruled that Glenn Maynor’s six-year sentence was too harsh in light of sentencing guidelines and the facts that the judge cited in issuing the sentence. The recommended range was 18 to 24 months....

Maynor was the highest-ranking lawman swept up in Operation Tarnished Badge, a six-year probe into corruption in the Robeson County Sheriff’s Office. Twenty-three people, mostly deputies, pleaded guilty to crimes that included kidnapping, money laundering, racketeering, theft of federal money and satellite piracy. Their sentences ranged from a few months to 34 years in prison.

Maynor pleaded guilty to lying to a grand jury and to allowing deputies to get paid for working at his home and at his election campaign’s golf tournament. He was sheriff from 1994 to 2004.

"Wal-Mart pays $2M to avoid charges in death probe"

The title of this post is the headline of this new AP article. Here are some of the details of an interesting story that raises interesting issues related to corporate criminal liability, the purposes of punishment and prosecutorial discretion:

Wal-Mart agreed Wednesday to pay nearly $2 million and improve safety at its 92 New York stores as part of a deal with prosecutors that avoids criminal charges in the trampling death of a temporary worker.

Nassau County District Attorney Kathleen Rice, who began a criminal investigation shortly after last November's customer stampede at Wal-Mart's Valley Stream store, said that if she had brought criminal charges against the retailer in the worker's death, the company would have been subject to only a $10,000 fine if convicted. Rice declined to say what charges were considered against Wal-Mart, citing the secrecy of grand jury proceedings.

Instead, she said, the company has agreed to implement an improved crowd-management plan for post-Thanksgiving Day sales, set up a $400,000 victims' compensation and remuneration fund, and give a $1.5 million grant to Nassau County social services programs and nonprofit groups.... "Rather than bringing the world's largest retailer to court and imposing a small fine against them, I felt it was important to require significant safety changes that will affect the whole state," Rice said. "Our goal is for the protocols that are set up to be the gold standard for crowd management in this industry."...

The community grant money includes $1.2 million for Nassau County's Youth Board, which helps nonprofit agencies provide career development, employment training and other opportunities. The retailer also will donate $300,000 to the United Way of Long Island's Youth Build Program in Nassau County. The deal also calls for Wal-Mart to hire 50 high school students annually to work in its five stores in the county.

Anyone inclined to raise a stink about this outcome? Anyone troubled by the Nassau County DA's use of the threat of criminal prosecution to compell Wal-Mart into this kind of unusual settlement?

Should pending legislation worry federalist and Supremacy Claus?

This new postat the "Threat Level" blog at Wired.com, which is titled "Prison Awaiting Hostile Bloggers," might give pause to some of this blog's most frequent commentors. Here are the details:

Proposed congressional legislation would demand up to two years in prison for those whose electronic speech is meant to “coerce, intimidate, harass, or cause substantial emotional distress to a person.” Instead of prison, perhaps we should say gulag.

The proposal by Rep. Linda Sanchez, D-Los Angeles, would never pass First Amendment muster, unless the U.S. Constitution was altered without us knowing. So Sanchez, and the 14 other lawmakers who signed on to the proposal, are grandstanding to show the public they care about children and are opposed to cyberbullying.

The meaasure, H.R. 1966, is labeled the Megan Meier Cyberbullying Prevention Act. It’s designed to target the behavior that led to last year’s suicide of the 13-year-old Meier....

Sanchez’s bill goes way beyond cyberbullying and comes close to making it a federal offense to log onto the internet or use the telephone. The methods of communication where hostile speech is banned include e-mail, instant messaging, blogs, websites, telephones and text messages.

We can’t say what we think of Sanchez’s proposal. Doing so would clearly get us two years in solitary confinement. The bill has been referred to the House Judiciary Committee.

Because they often stir up good debates, I am genuinely grateful for the engagement of federalist and Supremacy Claus and other commentors who harass me (at least when they make a genuine effort to be thoughtful and on-topic). But, as this Wired post and my own post title are meant to highlight, the line between cyberbullying and robust on-line debate can be hard to draw; I especially do not like the idea of any legislation that would require federal prosecutors to be in the business of drawing this line.

Who will get the first e-book into the law school classroom?

Thanks to this post by Jonathan Alder at Volokh, I see from this article that Case Western Reserve University will soon have students in certain classes getting their their textbooks via the Amazon Kindles. This Wall Street Journal report explains that Amazon "on Wednesday plans to unveil a new version of its Kindle e-book reader with a larger screen and other features designed to appeal to periodical and academic textbook publishers." Here's more:

Beginning this fall, some students at Case Western Reserve University in Cleveland will be given large-screen Kindles with textbooks for chemistry, computer science and a freshman seminar already installed, said Lev Gonick, the school's chief information officer. The university plans to compare the experiences of students who get the Kindles and those who use traditional textbooks, he said.

The new device will also feature a more fully functional Web browser, he said. The Kindle's current model, which debuted in February, includes a Web browser that is classified as "experimental." Five other universities are involved in the Kindle project, according to people briefed on the matter. They are Pace, Princeton, Reed, Darden School at the University of Virginia, and Arizona State.

Over at Law School Innovation, we have been talking about Kindle and other e-readers in the law school classroom for almost two years already (see 2007 posts here and here and here). From the get go, I have never doubt that e-books would eventually take over the law-school classroom. Because of the extraordinary costs and inconveniences of traditional law school casebooks, the issue in my view has always been, not whether e-books become common, but rather just when and exactly how they will enter the law school classroom.

Cross-posted at LSI

UPDATE: The new Kindle, known as the Kindle DX, can be seen in the picture above, and this report on its launch highlights why e-books are the future and also has a great quote from my former OSU College of Law colleague (who is now a tech rock-star):

Bezos reminded the assembled journalists at this week's launch event that the Amazon Kindle will soon be able to offer "every book ever printed, in any language, all available in less than 60 seconds."

"Eighteen months ago, we launched Kindle, and at the time we had 90,000 books available for Kindle. (We had) 230,000 books just three months ago when we launched Kindle 2," Bezos said. "We've added another 45,000 books in just the last three months. We're actually accelerating."

"The display is 2 and a half times the size of the Kindle 2," added Bezos, adding that with the "Built in PDF reader, you never have to pan, you never have to zoom, you never have to scroll. You just read." Also, rather niftily (just as with Apple's iPhone), "You just rotate the device and you go to widescreen mode."...

"Textbooks shine with this display," Bezos continued, telling the assembled crowd in NYC that he was "excited to announce today that we've reached an agreement with three leading textbook publishers."

As for students, Bezos confirmed that they already have five universities involved in piloting the Kindle DX this autumn, welcoming in Barbara Snyder, President of Case Western Reserve to give her own opinions on the new electronic textbook.

"We believe this will revolutionize learning," said Snyder. "As a research university, we're bound to test our hypothesis -- will the Kindle change how students work? We're going to look at these questions. To all the reporters here, can you imagine what it would be like to craft your story using paper, a typewriter, white out?"

Republican governor signals openness to legalizing marijuana

Coincidentally, on the same day that I engendered a robust debate when suggesting that the GOP might start considering a new set of approaches to crime and punishment, a prominent Republican governor has indicated a willingness to consider legalizing and taxing marijuana. Of course, as this Reuters piece details, this suggestion is coming from a non-traditional member of the GOP:

California Governor Arnold Schwarzenegger said on Tuesday he welcomes a public debate on proposals to legalize and tax marijuana, which some suggest could provide a lucrative new revenue source for the cash-strapped state. The Republican governor, whose term in office expires at the end of next year, was asked about the idea of treating pot like alcohol at an appearance in northern California to promote wildfire preparedness.

"No, I don't think it's time for that, but I think it's time for a debate," he said. "And I think we ought to study very carefully what other countries are doing that have legalized marijuana and other drugs, what affect it had on those countries, and are they happy with that decision."... He said a decision to legalize marijuana, which has been outlawed in the United States since 1937, should not be made on the basis of raising revenues alone.

Schwarzenegger's comments come days after a statewide Field Poll found that 56 percent of California voters support the idea of legalizing cannabis for recreational use and taxing its proceeds.

Another example of victim calling for a reduced sentence

Regular readers know I like to spotlight cases in which a crime victim has been a voice for sentencing leniency rather than toughness. This new article from the Philadelphia Inquirer, headlined "Victim's forgiveness keeps embezzler out of prison," provides another example. Here are the deatils from the start of the article:

Elizabeth "Betty" Greenawalt embezzled more than $900,000 from her long-time employer and neighbor, robbing him of money that he could have taken into his retirement. Ralph Bucci went to Delaware County Court yesterday for Greenawalt's sentencing. Instead of seeking revenge, he offered forgiveness. "I do not seek a prison sentence on my behalf," Bucci told Judge James F. Nilon Jr.

Joan Bucci, his wife, called it a difficult day for her. She mentioned Greenawalt's gambling addiction and said Greenawalt's actions had hurt the family emotionally and financially. The Buccis' two daughters and son also testified that they had no desire to see Greenawalt go to prison, and that they also forgave her.

Greenawalt, who turned 66 yesterday, is in remission from Stage IV ovarian cancer. She was sentenced to nine months of house arrest and more than 19 years of probation, and ordered to pay approximately $636,000 in restitution and serve 300 hours of community service.

"Why Neuroscience Matters for a Rational Drug Policy"

Drug addiction reflects abnormal operation of normal neural circuitry. More than physical dependence, addiction represents changes in the brain that lead to increased craving and diminished capacity for the control of impulses. Given the growing biological understanding of addiction, it is critical for scientists to play an active role in drug policy because, as neuroscientific understanding develops, we will, to a much greater degree, be able to target specific behavioral, pharmaceutical, and neurological treatments for specific addictions. It is important to emphasize that biological explanations will not become equivalent to exculpation. Instead, the goal of explanation is to introduce rational sentencing and the opportunity for customized rehabilitation. This approach is likely to show more utility and less cost than incarceration. The neuroscientific community should continue to develop rehabilitative strategies so that the legal community can take advantage of those strategies for a rational, customized approach to drug addiction.

Michael McConnell leaving Tenth Circuit to return to academy

As detail in this post at The BLT and in this official announcement, "Michael McConnell, one of the most influential federal appeals court judges in the nation, is stepping down from the U.S. Court of Appeals for the 10th Circuit [in order to] become director of the Constitutional Law Center at Stanford Law School."

In recent years, Judge McConnell has authored some influential sentencing opinions and articles (including one entitled simply "The Booker Mess" discussed here). I am pleased that the judiciary's loss is the ivory tower's gain (and I hope Professor McConnell keeps up his sentencing interests in his new gig).

May 5, 2009

Chief district judges press AG Holder on various sentencing fronts

The National Law Journal has this interesting new piece headlined "Attorney General Promises Judges a New Day at DOJ." Here are some of the notable sentencing-related highlights:

In his first confab with the nation's chief federal district judges, Attorney General Eric Holder Jr. pledged to raise the bar of professionalism in the U.S. Department of Justice and acknowledged that the current procedure for reviewing complaints against attorneys was too slow and opaque.

Nine chief judges described the April 21 meeting on the condition of anonymity because it was closed to the public. Holder's words held the promise of reform for the approximately 90 judges who attended the annual meeting at the Thurgood Marshall Federal Judiciary Building in Washington as discovery abuses and other prosecutorial misconduct, new and old, have come under increased scrutiny in the aftermath of the Ted Stevens case....

Holder also said his department would take steps to eliminate the vast disparities in federal sentencing for possession of crack versus powdered cocaine and expressed his commitment to look into alternative courts to deal with drug-related offenses, the judges said. Last week, Holder's new Criminal Division chief, Lanny Breuer, told a congressional panel that the department would support legislation to put crack and powder cocaine offenses on equal footing.

Several judges advocated for uniformity in sentencing and charging policies. One judge asked whether the Justice Department would, in some cases, continue stacking gun charges, which carry consecutive mandatory minimums sentences that can lead to lengthy sentences. Holder said he and his staff were reviewing the practice.

Another judge pressed Holder about inconsistencies among the U.S. attorneys offices in crediting defendants who provide substantial assistance to the government. In some jurisdictions, substantial assistance, such as wearing a wiretap, can earn a defendant a 50 percent sentence reduction, while in others, it might earn them only a 10 percent reduction.

Holder said the these issues were under review. He has tapped Deputy Attorney General David Ogden to chair a working group to examine federal sentencing and corrections policy and possibly make recommendations to Congress and the president.

I think it is both telling and significant that chief federal district judges care a lot about key sentencing issues impacted greatly by the exercise of prosecutorial discretion. It is also encouraging that AG Holder indicated that all these important issues are under review. It would be nice, however, if DOJ would be even more transparent and proactive in advising the federal judicial system and the public about possible timelines for these reviews and potential policy changes.

Giving credit where credit is due for providing a different perspective on SCOTUS nominees

I am pleased to see that columnist Stephen Henderson, in this newspaper piece headlined "Age and the Supreme Court," makes reference to this blog post of mine from yesterday titled "For the Supreme Court, Younger Isn’t Necessarily Better." However, though I am happy to be the conduit for the insights in the post, the credit for the substance of the post must go to a former law-school classmate of mine (who indicated to me that he preferred to not be named in the post).

Though I personally agree with many of the thoughts expressed in the prior post, my former classmate should get the credit for the insights and the wisdom to be found therein. Perhaps upon seeing that I am being mistakenly praised for his genius, my former classmate will be okay if I share his name. In the meantime, I will just encourage everyone to continue to keep thinking (and sharing) different thoughts about whom President Obama should nominate to the Supreme Court.

Some prior posts on SCOTUS personnel (including some with my own (and others') ruminations):

A helpful release at the start of the US Sentencing Commission's data conference

As previously blogged here, the United States Sentencing Commission is conducting a multi-day data and research conference, which started today. Not coincidentally, I suspect, one can now find this new publication on the USSC's website:

Introduction to the Collection of Individual Offender Data by the United States Sentencing Commission: This report introduces the process the United States Sentencing Commission uses to create its fiscal year individual offender datafiles from documents submitted to the Commission. Issues surrounding the use of differing form types and conflicting information among documents are also addressed. The report is designed to help researchers use the Commission’s datafiles by providing answers to common data analysis questions.

Could vocal opposition to the death penalty, mass incarceration and the drug war help lead the GOP out of the wilderness?

The party switch of Senator Spector, after big losses in the last two elections, has conservative pundits talking about how the Republican party can get its mojo back. For example, I heard on NPR yesterday this segment with David Frum and Jonah Goldberg and this segment with Christine Todd Whitman, David Keating, and Matthew Continetti. But persistently missing in all the chatter is what I think could and should be a new winning issue for the GOP: being (fiscally) smart on crime by opposing wasteful government spending on the death penalty, mass incarceration and the drug war.

Especially on the Rush Limbaugh show, folks on the right often assert that the GOP is the only party truly committed to the principles of "life, liberty and the pursuit of happiness." When I hear that claim, however, I wonder how it squares with modern Republican support for the death penalty (which ends life), and for long prison terms and drug prohibitions (which severely restrict both liberty and the pursuit of happiness). I find vocal GOP support for the death penalty, mass incarceration and the drug war especially jarring when leading Republicans complain about big government, bureaucracy and excessive taxing and spending — all these problems find particular expression, especially at the state level, in the modern operation of the death penalty, mass incarceration and the drug war.

Beyond principle, a changed course on the death penalty, mass incarceration and the drug war could make for good politics. Many on the religious right have problems with state killing and with a penal system that does not focus on redemptive potential. And both minority populations and younger voters, two groups the GOP is struggling to reach, would surely take note and be impressed if a Republican candidate were to express strong opposition to the most costly and oppressive facets of modern mass incarceration and the drug war.

I am not expecting the GOP to change course on these criminal justice issues anytime soon, but I am hoping that desperate electorial times might at least prompt some new thinking in traditional "tough-on-crime" quarters. Notably, in the 1990s the Democrats got some of their mojo back when President Bill Clinton moved right on crime and justice issues. I do not think I am crazy to suggest that Republicans might profit from flipping the Clinton playbook.

UPDATE with apologies: For some tech glitch reason, only the first 20+ of the 30+ comments to this post are showing up. I do not know why and I hope I can/will be able to rescue all the additional rine comments that are being saved but are not visible.

Looking (a bit too hard) for problems for SCOTUS short listers

I am a bit disappointed, though not really surprised, by this new Slate piece from Emily Bazelon, titled "Future Dangerousness: The tricky sex offender case that could trip up one of the judges on the short list to replace Souter." The piece is focused on Judge Diane Wood and examines a 2004 case from the Seventh Circuit, Doe v. City of Lafayette, in which Judge Wood voted in favor of a sex offender — first as the swing vote in a split panel and then as a dissenter after the case was reviewed en banc.

I have no problems closely examining significant opinions authored by judges who are possible SCOTUS nominees (though I wish the media would focus a lot more on possible candidates others than circuit judges). But in this 2004 Doe case, Judge Wood merely cast a vote, she did not even write an opinion.

If Judge Wood (or any judge) gets tapped for the top court, all votes in all cases seem to be fair game for analysis and criticisms. But, only days after Justice Souter announced his retirement, it seems a bit too early to be looking so hard for problems in the voting records of well-regarded experienced jurists — jurists who, if they are doing their jobs right, will have sometimes concluded that the law called for a ruling that might not win majority approval by voters.

Effort to repeal death penalty in Colorado now faltering

According to this New York Times article, the on-going efforts to repeal the death penalty in Colorado had a rough day in the state senate. Here are some details:

An effort to repeal Colorado’s death penalty law stumbled Monday in the State Senate after two hours of sometimes anguished and angry debate, leaving the bill in limbo and supporters scrambling to find votes as the end of the session looms this week.

The Colorado House voted in support of repeal, by a single vote majority, last month. In their debate, lawmakers focused on questions of deterrence, certainty or doubt in the age of genetic evidence, and, far from least in the mix, money in a time of shrinking government resources.

As proposed, the bill would have redirected about $1 million now devoted to death penalty costs to the Colorado Bureau of Investigation for investigating unsolved crimes known as cold cases. But the amendment that passed on a voice vote Monday pledged new money for cold cases — popular with lawmakers on both sides of the aisle — but made no mention of the death penalty....

Contrary to the myths and legends of rough justice, most of the West — with the major exception of California — did not race back to imposing the death penalty after 1976, when the United States Supreme Court allowed states to resume the practice.

Colorado, Montana and Wyoming each have only two inmates on death row, as did New Mexico when it repealed its death penalty law in March, according to the Death Penalty Information Center, a Washington-based research group that opposes capital punishment. Colorado has executed only one person since 1976.

"Uncertainty in the Theory of Deterrence: Experimental Evidence"

The title of this post is the title of this interesting paper by two economists that I came across on SSRN. Here is the abstract:

We conduct laboratory experiments to investigate the effects of deterrence mechanisms under controlled conditions. The effect of the expected cost of punishment of an individual's decision to engage in a proscribed activity and the effect of uncertainty on an individual's decision to commit a violation are very difficult to observe in field data.

We use a roadway speeding framing and find that (a) individuals respond considerably to increases in the expected cost of speeding, (b) uncertainty about the enforcement regime yields a large reduction in violations committed, and (c) people are much more likely to speed when the punishment regime for which they voted is implemented. We also obtain a theoretical result that states that, holding the true expected cost constant, people in an uncertain environment perceive a larger expected cost of speeding in the regime with higher probability. Our results have important implications for a behavioral theory of deterrence under uncertainty.

May 4, 2009

Analyzing the cert grants in both Graham and Sullivan

Over at SCOTUSblog, Lyle Denniston has this interesting new post titled "Analysis: Why two juvenile sentence cases?". Here is a snippet of Lyle's analysis:

With a continuing wave across the country of tougher punishment for youths who commit serious crimes, the Supreme Court on Monday returned to the constitutional controversy that the wave has stirred. The Court took on two new juvenile sentencing cases that, seemingly raises the same issue, but apparently left itself the option of treating them differently. It did not explain, but a few reasons may be suggested....

It is quite common for the Court, when it has two or more cases raising the same issue, to pick only one for review, or to consolidate them for a joint ruling. It took neither option this time, setting the stage for two rulings, perhaps with different potential outcomes.

[T]here is at least a chance that Sullivan might not be allowed to raise his constitutional argument, because it could be found to have come too late. The Graham case only involves the specific issue of an Eighth Amendment violation in a life without parole sentence for a minor. Thus, the Court may have wanted a second case before it in case it should find that Sullivan did not present that claim properly.

Another difference between the two, of course, is the youths’ relative age. The Court, if it reached the life sentence issue in Sullivan, might be more sympathetic to a youth of his age getting a life term for a sexual crime that left the victim injured, but not dead. The Court last Term ruled out a death sentence for such a crime (in Kennedy v. Louisiana, involving a child victim who was not killed).

Graham, by contrast, is four years older, and was given a life prison term after returning to criminal activity after being spared a long prison term for an earlier episode. Some members of the Court may have found him a less sympathetic figure, and wanted to have that case on the docket to perhaps limit the scope of any ruling that went against life terms for teenagers.

Indeed, it might be speculated that the Court spent most of a month looking at these two cases as it tried to sort out just what it wanted before it, and the grant of both cases might well have been a compromise between the Court’s two ideological wings. The Court has been split deeply in its most recent rulings limiting the scope of the death penalty, and there is no reason to anticipate a more unified bench on this new controversy involving life without parole — a severe sentence for a minor.

The Court will hold oral argument on the two cases in the Term starting Oct. 5, very likely in tandem hearings on the same day.

I think all of Lyle's speculations for why the Court decided to take up both Sullivan and Graham make sense, and I was prepared to predict split rulings were in the works when I first saw that the defendant in Grahamwas 17 at the time of his LWOP sentence. However, the procedural quirkiness surrounding the imposition of an LWOP sentence in Graham (discussed here), as well as the fact that Sullivan involves a first-offense rape and Graham involves second-offense robbery, makes me wonder if some other factors played a role in the decision of SCOTUS to set up a juve LWOP double-header.

Attacking the federal sentencing guidelines based on moral obligations

"A Personal Affair: Moral Obligation and the New Common Law of Sentencing" is the title of this new piece on SSRN authored by Hans Grong. Here is the abstract:

Sentencing has a tortured history in the federal system. The Sixth Amendment, due process, and separation-of-powers problems with the current sentencing regime have been extensively documented. But this Article deals with a different problem. This Article deals with the moral failure of the federal sentencing regime. This Article contend that the current system of federal sentencing fails to treat defendants as human beings and, as such, fails to fulfill its moral obligation to impose just sentences. As a response, this Article proposes a new paradigm for federal sentencing. This Article outlines a federal sentencing regime based on guided, principled judicial discretion, which I refer to as "the new common law of sentencing."

The primary argument is based on the moral obligation that society and the criminal-justice system have in the context of sentencing. Our criminal-justice system has an obligation to impose just sentences. Any given sentence cannot be just, however, unless it takes the individuality of the defendant into account in a way that is impossible under the mechanical system currently in place. This Article proposes a new paradigm for sentencing based on guided judicial discretion. This new model, which is referred to as the "new common law of sentencing," is an attempt to return to the judicial-discretion model of sentencing while alleviating the problems that plagued the pre-1984 sentencing system. In effect, it argues for a return to the literal text of the Sentencing Reform Act and a rejection of the presumptions in favor of the Sentencing Guidelines.

Another notable lean-times report on the prison economy

The Salt Lake Tribune has this interesting piece, headlined "Probation and parole officers stretched thinner: Corrections struggles to track offenders in tight budget times," providing another on-the-ground prespective of the criminal justice impact of lean economic times. Here are excerpts from the story:

[W]ith probationers and parolees now comprising one of every 136 people in the Salt Lake Valley, monthly checks are growing to be nearly impossible. Officers are coping by downgrading more high-risk offenders and ending supervision earlier for others.

Recent Department of Corrections budget cuts have included a six percent job reduction and the closure of an offender diagnostic center that recommended sentences to help judges. They have also thinned the number of courses offered at Adult Probation and Parole offices, such as anger management and parenting....

Some probationers and parolees pay $180 per month for ankle-monitoring devices and officers to track them. But the bill is a tough sell for people with criminal records already struggling to find or keep jobs . And officers usually have to check on unemployed offenders more often since, Luke said, "free time can turn to drugs and deviant thoughts."

What might (and should) DOJ and other potential amici say about Graham and Sullivan?

I am already having a hard time not getting too excited about the Supreme Court's cert grant today in the juve LWOP cases of Graham and Sullivan (basics here). Part of the excitement relates to the fact that we can and should expect a new Justice to be on the Court to hear these cases, and thus I can and should that this Justice might breathe some new life into a troublesome modern Eighth Amendment jurisprudence. Another part of the excitement relates to the question that titles this post — namely, the uncertainty that now surrounds what the Obama Justice Department and other likely amici might have to say about the constitutionality of life without parole sentences for juvenile offenders.

Of course, we can and should expect a number of public policy groups and defender groups to file amicus briefs in support of the defendants in Graham and Sullivan. Organizations like Human Rights Watch and The Sentencing Project and others have long been vocal opponents of juve LWOP sentences, and I would expect and hope they will share their insights with SCOTUS in these cases. Also, defender groups like NACDL and others might also chime in to flag some unique lawyering perspectives in these cases.

But what about the US Department of Justice and/or Attorneys General from other states? Though they could opt to sit out the case altogether, I have an inkling that a diverse set of state and federal prosecutors may have a diverse set of perspectives concerning the proper way to apply (and limit) the Eighth Amendment in the juve LWOP setting. Can and should we expect a bold amicus brief from federal AG Eric Holder and SG Elena Kagan? Can and should we expect dueling amicus briefs from states that permit and states that preclude juve LWOP? I suppose time (and the SCOTUS briefing schedule) will soon tell.

The (unpreserved?) procedural issues in Graham juve LWOP case

Thanks to SCOTUSblog's post here, everyone can now check out this cert petition in Graham v. Florida, the juve LWOP case that the Supreme Court decided to take up today (basics here). Assuming the fact statement in the Grahampetition is accurate, the sentencing procedures used in the case are as troubling as is the substance of the LWOP sentence.

According to the cert petition, the defendant in Grahamwas given an LWOP sentence by a judge as a sentence for violating the terms of his probation(!) by committing an armed robbery a year after being placed on probation for a prior armed burglary. As described, the procedures used to impose the LWOP sentence in Graham would seem to raise an array of possible Fifth and Sixth Amendment issues. But the Graham cert petition only raises an Eighth Amendment claim (and other procedural claims may not have even been raised below), and thus it is unclear whether or how these procedural issues will be addressed as this case gets considered by the Justices.

California takes steps to get executions going again

As detailed in this Sacramento Bee article, headlined "State seeks to start executions again with new rules," California has taken a crucial step to get back to conducting executions. Here are the basics:

California took a major step Friday to clear one of two legal hurdles that have halted executions at San Quentin for more than three years. The state posted its new lethal injection protocol for executions and opened a public comment period as required under California's Administrative Procedures Act....

San Quentin's death row, the nation's largest, houses 680 prisoners. The moratorium began on Feb. 21, 2006, when U.S. District Judge Jeremy Fogel of San Jose stayed the execution of Michael Morales after a challenge by his attorneys to the state's lethal injection methodology....

In December 2006, Fogel found the state's practices in violation of the U.S. Constitution's ban on cruel and unusual punishment. He cited evidence that condemned inmates are at risk of severe, unnecessary pain.... The hiatus has continued despite the U.S. Supreme Court's April 2008 ruling in a Kentucky case that lethal injections are not inherently unconstitutional.

A task force formed by Schwarzenegger revamped execution procedures in 2007 in an effort to allay Fogel's concerns, and a new death chamber has since been constructed.

But before Fogel could review the changes, a Marin Superior Court judge ruled that the governor and corrections officials couldn't switch execution protocol without public reaction. The 1st District Court of Appeal in San Francisco affirmed the lower court's ruling in November, and the state chose not to seek further review.

"For the Supreme Court, Younger Isn’t Necessarily Better"

A law-school classmate of mine was kind enough to allow me to post here his terrific bloggy op-ed with advice for President Obama as he considers his first Supreme Court nominee. The piece caries the same title as this post and goes a little something like this:

The conventional wisdom is that in choosing a successor for Justice David Souter, Barack Obama should rule out anyone over sixty years old. There is a surface logic to this reasoning -- after all, if Clarence Thomas is likely to have a forty-year run on the court, why shouldn’t President-elect Obama want the same fate for his nominees? But, there are several reasons why, when it comes to Supreme Court justices, younger isn’t necessarily better.

First, the idea of choosing young Supreme Court justices is based in part on the false assumption that Supreme Court justices are likely to step down from the court at random intervals. In fact, as Justice Souter’s retirement demonstrates, Justices can usually time their retirement. Particularly when a justice is chosen based on his/her ideology, there is a strong likelihood that the justice will keep that in mind when it comes to retirement. Obviously, octogenarians are not always able to control when they leave the bench (Justice Marshall is a poignant example of this phenomenon), but more often then not, a justice will be able to wait out a sitting President.

Second, it isn’t necessarily good for the Court for justices to sit on the bench for forty years. While some of the justices who have enjoyed long tenures on the Court have thrived (e.g., Justice Stevens), there is a danger that the longer a justice remains on the court, the more out of touch he or she will become. To the extent President-elect Obama hopes to bring about lasting change, he should proceed based on the assumption that the President who is elected in 2028 will be able to choose just as wisely as he can when it comes to nominating Supreme Court justices.

Third, since President-elect Obama will likely want a nominee who brings additional diversity to the bench both in terms of family background and experience, it may be easier to accomplish this goal if he includes an older pool of potential nominees. In particular, Obama may want to appoint the first Latino justice. It is notable that the first Jewish Justice (Brandeis) was 60 when he was appointed, and the first African-American was 59. This is likely because the Presidents who made the nominations wanted to make sure that no one could question the credentials of these nominees. Further, if diversity on the bench is important to Obama, he should bear in mind that the pool of potential female, African-American, Latino, and Asian-American justices will keep increasing over time, and thus, if he chooses a 60-year old now, someone who is in his/her early 40s now will be able to replace that person. Moreover, choosing an older justice may make it easier to find a nominee who has a longer, more diverse resume. For example, when Chief Justice Warren was tapped for the bench, he was already 62. Likewise, Justice Marshall’s relatively advanced age gave him an opportunity not only to have a long career at the NAACP Legal Defense Fund, but also time as Solicitor General and as an appellate judge.

Fourth, if President Obama wants his nominee to make a big impact right from the start, it makes sense to choose a nominee who already comes to the court with a great deal of stature. Again, choosing someone who is a little longer in the tooth may make it easier to find someone who fits this bill.

Finally, some of you may be thinking that the Republicans choose young justices, so Obama should follow suit. But, there may be good reasons why what’s good for the goose isn’t necessarily good for the gander. The Republicans’ ideal justice is probably an originalist like Justice Scalia; their goal on the court (apart from approving ever-greater powers for the executive) is generally to stop the clock or, even better, turn the clock back to 1789. The dominant wing of the Republican party is certainly not interested in appointing justices who believe in a living constitution that will take into account, for example, the growing hostility to the death penalty throughout the world. Thus, if the Republicans can lock someone in now who will issue the same rulings for the next forty years, they will probably be happy. But, just as President Roosevelt, appointing justices in the 1930s could not foresee that the key issues that would face the court in the 1950s and 1960s would be civil rights and civil liberties, President Obama ought to realize that he can’t foresee what issues will face the court in the 2030s. While I am confident that any nominee he will choose would be flexible enough to adapt to the world we will face in the 2030s, it is more likely that the President we elect in 2028 will have a better sense of the challenges the court is likely to face at that time.

Having said all of this, it may very well be that the best candidate for the Court turns out to be someone who is under 50. But, President Obama should not overlook an outstanding candidate like California Supreme Court Justice Carlos Moreno simply because he has already celebrated his 60th birthday.

Unanimous SCOTUS win for defendant in Flores-Figueroa

Providing a notable contrast to last week's ruling in Dean (basics here), today the Supreme Court vindicates a federal defendant's mens rea claim in the interpretation of an identity-fraud statute. Here are the basics from SCOTUSblog:

The Court has released the opinion in Flores-Figueroa v. United States(08-108). The decision below, which held for the United States, is reversed in a 9-0 opinion by Justice Breyer, available here. Justice Scalia filed an opinion concurring in part and in the judgment, joined by Justice Thomas, and Justice Alito filed an opinion concurring in part and in the judgment.

And here is the first paragraph from Justice Breyer's opinion in Flores-Figueroa (emphasis in the original):

A federal criminal statute forbidding “[a]ggravatedidentity theft” imposes a mandatory consecutive 2-year prison term upon individuals convicted of certain other crimes if, during (or in relation to) the commission of those other crimes, the offender “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” 18 U. S. C. §1028A(a)(1) (emphasis added). The question is whether the statute requires the Government to show that the defendant knew that the “means of identification” he or she unlawfully transferred,possessed, or used, in fact, belonged to “another person.” We conclude that it does.

SCOTUS grants cert in Sullivan, juve LWOP case

As detailed in this order list, among the cases in which the Supreme Court granted cert this morning is Sullivan v. Florida. As detailed in posts linked below, Sullivan involves an Eighth Amendment challenge a sentence of life without parole given to a rape defendant who was only 13 years old(!) at the time of the crime. For a variety of reasons, Sullivan has the potential to be the biggest non-capital Eighth Amendment case decided by the Supreme Court in many years.

Interestingly, as noted here by SCOTUSblog, the Supreme Court also took up a companion juve LWOP case, Graham v. Florida, which apparently involves an life sentence for a non-murder crime committed by a 17-year-old offender. As suggested in the prior paragraph, Sullivan and Graham are likely to be the cases to watch for sentencing fans in the next SCOTUS Term (which, of course, is going to involve a brand new Justice). Exciting times.

Has there been any in-court impact from DOJ's new crack sentencing policy?

The new crack sentencing policy talk from the new Justice Department (basics here and here) has justifiably garnered lots of media attention. For example, over the weekend the San Francisco Chronicle had this front-page article, headlined "Advocates predict change in cocaine sentences." And today I have seen these editorials supporting the equalization plan now proposed by DOJ:

From the Chattanooga Times Free Presshere, "Unfair sentence for crack cocaine"

But while others continue to call for Congress to embrace DOJ's new suggestion to eliminate the crack/powder disparity, I continue to wonder whether there has been (or will be) any in-court fallout from DOJ policy even before Congress gets around to acting.

It surely will take weeks (and probably many months) before DOJ's advocacy produces legislation that "completely eliminates the sentencing disparity between crack and powder cocaine." Meanwhile, nearly 100 crack sentences are imposed in federal courts each and every week (and more are appealed each week). Were any of the sentencings late last week impacted by DOJ's new crack sentencing policy? Will any crack sentencings scheduled for this coming week be affected? In my view, they certainly should be, but that does not mean they will.

May 3, 2009

Banishment a popular (but uneven?) special punishment in Georgia

As detailed in this effective local article, headlined "More than 500 people have been banished from Houston County," one Georgia county makes banishment a (semi)regular punishment for certain offenders. Here are the particulars:

More than 500 people have been banished in Houston County since 1998 when the District Attorney’s Office started tracking this sentencing option. Still, that’s about one out of every 60 cases, comparing the 500 banishments to more than 30,000 cases for the same time frame, said Houston County District Attorney Kelly Burke....

Keeping a person out of the county where the crime was committed during the probationary period may actually help the offender, Burke said. For example, banishment disrupts the network of a drug abuser or dealer, breaking the cycles of addiction and the criminal activity of buying and selling, Burke said. “I believe banishment really works,” Burke said. “It provides a chance to get your life straight while on probation.”

In the case of domestic violence, often the victim doesn’t want the abuser to go to jail but to simply be left alone, Burke said. Banishment gives the victim peace of mind that they can safely go to a restaurant or to a child’s soccer game without the offender showing up and claiming they didn’t know the victim was at the restaurant or the game — a common scenario that plays out in restraining orders, Burke said....

Jim Rockefeller, a criminal defense attorney in Warner Robins, said banishment can be a useful tool with someone who is involved in some sort of network of gang activity or drug dealers. However, wholesale use of banishment would result in simply shuffling people around the state, he said. Also, if wrongly used, banishment can set up a person for failure by cutting them off from positive networks such as families and jobs, Rockefeller said.

Rockefeller said he believes it would be appropriate for the state General Assembly to develop uniform guidelines on the use of banishment. Another option that judges might consider would be requiring banishment consideration to be part of arguments during sentencing hearings, rather than part of negotiated pleas among prosecutors and defense attorneys, Rockefeller said.

In neighboring Bibb County, banishment is rare. “We have done it a few times since I’ve been in office but not a whole lot,” Bibb County District Attorney Howard Simms said. “Some of our judges don’t like it.” Simms said he also has problems himself with the enforceability of banishment and other issues it creates, such as with child custody.

Superior Court Judge S. Phillip Brown said there are some practical considerations of why banishment wouldn’t work on a broad-based approach or as a routine matter. What about doctor’s appointments, for example?, Brown said. His concern is that banishment may set up an offender for failure when the justice system should encourage success.

With 500 cases of banishment over a fairly long period in a single Georgia country, we should be able to move past anecdote and be able to collect some empirical evidence about whether banishment is an effective sentencing provision for certain classes of offenders. I fear that no serious banishment studies are underway, but this would be a valuable and important opportunity from criminology or sociology grad students looking to make a real impact with some ground-level research.

A sentencing aside amidst all the SCOTUS speculation

Today's above-the-fold front-page article in the New York Times is all about President Obama's legal past as he prepares to make a pick for the Supreme Court's future. This article, which is headlined "As a Professor, a Pragmatist About the Supreme Court," includes this notable aside noting how President Obama addressed sentencing issues back when he was Professor Obama:

Former students say that Mr. Obama does not particularly prize consistency or broad principle.... [W]hen it came to sentencing laws, Mr. Obama led [student Adam] Bonin in a more conservative direction than the student had expected. The primary victims of black criminals were fellow blacks — and so minority neighborhoods had an interest in keeping sentencing laws tough, he taught.